Wednesday, February 28, 2007

A) HB 8 will "send a message, loud and clear, to child predators" that will prevent their heinous acts,

AND

B) "People who commit this kind of crime do not go around with the same rational reasoning process as you do." "They did not think about it," she said in response to criticisms that giving the death penalty to child molesters made them more likely to kill their victims.

So which is it? Will repeat child molesters learn of HB 8, quaver in their shoes, and change their dastardly ways, or will they not even be aware of the new law and disregard it entirely without drawing the obvious, rational conclusion under the law that they're better off if they murder the witness to the crime, in this case the child victim?

All this came out in debate over Rep. Harold Dutton's amendment to change the maximum penalty to Life Without Parole. What do you think? Would child molesters change their behavior in response to the law, or are they oblivious? I don't think it can be both.

I'm glad to see at least one pro-life member speaking up, btw. Will Hartnett, the Republican Chair of the House Judiciary Committee's questions to Dutton sounded supportive of the LWOP option.

UPDATE: ... And now we wait ... on FOUR points of order as of 3:49 p.m..

NUTHER UPDATE: At 3:57 Rep. Senfronia Thompson brought ANOTHER point of order, so now five by my count. Opponents really came loaded for bear today. And still, we wait some more.

Two points of order were ruled on in the end. The motion to table on Dutton's amendment passed 88-49.

Death penalty for child molesters it its, then, I guess.

FINAL UPDATE (7:10 p.m.): I had to leave for a meeting and returned a little after 7 p.m. to find HB 8 postponed until Monday. I wonder what the hell happened? Apparently a cadre of Republican reps delayed the legislation against the bill sponsor's wishes. Reports the Quorum Report:

Citing the need to get input from local prosecutors, Reps. Dan Gattis, John Smithee, Jerry Madden and others moved to postpone debate until Monday afternoon. Questions raised today ranged from definitions of what acts would be subject to the bill to concerns that the bill could lead more sexual predators to kill their victims. Those arguing for the delay said they supported the legislation but wanted aspects of the bill clarified.

That set them at odds with bill author Rep. Debbie Riddle and Rep. Linda Harper-Brown who said they were worried that any delay would help those trying to kill the bill.

Most of the recent exonerations based on DNA evidence in Texas have been as a result of inaccurate eyewitness testimony, including James Waller, an innocent man who spent 24 years in prison based on child molestation charges before DNA tests exonerated him. This study provides further evidence that new innocence reforms are needed as part of any new "tuff" laws regulating sex offenders. If the system convicts an innocent person, after all, the injustice is double: not only is an innocent person punished, but the real child molester presumably goes free.

Finally! The Texas House Research Organization's bill analysis of HB 8 ("Jessica's Law") was finally posted this morning, as near as I can tell just before if not slightly after the House was scheduled to convene (they're late). Here's their 13 page analysis of the bill.

UPDATE: The House is now standing at ease until 1:15 p.m.. Speaker Tom Craddick announced that all bills would be heard promptly at that time. He also said anyone with amendments should bring them forward and give them to the parliamentarian to speed the process along. I hope that means there are significant amendments being proposed to Jessica's Law. Go here for this afternoon's livestream.

With Jessica's Law (HB 8) being heard on the Texas House floor this morning, I found it ironic to listen to the House Corrections Committee seeking ways to avoid paying for the costly healthcare of elderly inmates at Monday's meeting.

HB 8 will boost sentences to a first degree felony (5-99 years) from a second degree felony (2-20 years) for certain offenses when the victim is under 14 years old, and remove options for parole for those offenders. But how much do you wanna bet the House debate over the bill this morning won't include much discussion about the costs of housing and treating elderly offenders? A "large number" of elderly offenders in Texas prisons already are sex offenders, a TDCJ official told the Corrections Committee.

But others in the Legislature still must think about how to pay for these offenders' healthcare. Discussing HB 763, which I'd blogged about earlier here, the House Corrections committee undertook a wide-ranging discussion about the growing expense of geriatric healthcare. (The committee hearing video is online here, and discussion of the bill begins at the 1:11:10 mark.)

"The population is becoming more aged," said Rep. Dutton. "Many of these are special needs inmates," he said, "who if you left the door open, the gate open, they'd be there the next morning."

Rep. Haggerty recalled that previous legislation made inmates eligible for medical release if a doctor said they would die within a year, Haggerty said, but "by the time we finished the paperwork, everybody died before we got them outta there." "It's a continuation of stupidity," Haggerty lamented.

The 9,700 TDCJ inmates over age 55 access healthcare services 3-4 times as often as younger inmates, the committee was told. For offenders who are elderly or truly disabled, it would be cheaper to move them into a non-secure facility so Medicaid would pay for their healthcare. In prison, the state of Texas must pay the full bill. Chairman Madden said there were two individual inmates at TDCJ whose healthcare cost taxpayers $1.5 million per year each.

At the end, they agreed that Dutton's bill might be used as a shell for reforms aimed at reducing high geriatric healthcare costs.

Sex offenders are not eligible for medical release, but even non-sex offenders are unlikely to be released for medical reasons. Last year TDCJ recommended that 451 offenders be released because their poor health generated high healthcare costs, but the Board of Pardons and Parole only approved 164 of them. The rest account for an extra-large proportion of TDCJ healthcare spending, and the committee was told those costs would only grow as the percentage of elderly inmates rose.

So what's the most important thing the state could do to reduce the number of geriatric inmates? Stop passing laws that result in decades long sentences! Duh.

If it wanted to, the Texas House could start that reversal this morning by at least amending HB 8 to allow for parole for geriatric sex offenders with special healthcare needs. It almost certainly won't happen, but be sure that won't stop complaints later about rising prisoner healthcare costs by the same politicians voting for HB 8.

Employ Community-Based Treatment. The best research (see the House Corrections Committee interim report) says that for most sex offenders community-based treatment is more effective than incarceration.

Wrong Crime for Death Penalty. Even with significant innocence reforms, the death penalty provision invites second offenders to murder their child victims if they're the only witness to avoid capital punishment. For the sake of child victims, not the offenders, this is the wrong punishment for this crime.

I hope we see some folks from both parties stepping up tomorrow to support changes like these and other innocence reforms to HB 8, especially after it sailed out of the Criminal Jurisprudence Committee on a desk vote without a single change from its filed form! It's one thing to pass a bill because you campaigned on the topic - it's another to fail to exercise oversight to avoid the worst, obvious abuses up front when you have the chance.

As my paternal great-grandfather used to say, "Only a hit dog hollers."

In response to this recent Grits post about prosecutors seeking to destroy DNA evidence to avoid future innnocence claims, we find several lengthy responses this morning on the Texas District and County Attorney Association website from discontented prosecutors suggesting my criticisms weren't offered in good faith. I responded to a couple of them via email, but since I can't post to their site I thought I'd record my responses directly here.

The first missive was from a Dallas prosecutor, Bryan Rutherford. He begins by launching an attack on Judge Ron Chapman, who commented in response to the original Grits post. Rutherford speculates someone was impersonating the judge and speciously implied Chapman had violated ethical codes. Rutherford then proceeds to claim my blog post is a "good example of a non-attorney misunderstanding general principles of how the law works." Read his full critique here. Here's how I responded:

Mr. Rutherford,

I can't post on the DA's site, but this non-attorney understood everything you said before you said it and doesn't find any of it very compelling. Or even particularly interesting.

First, you pulled Judge Chapman's quote out of context. He said IF Bradley's quote is accurate, then etc. He caveated his comment in a way that thwarts your critique. And I'm pretty sure it was Judge Chapman. Like many judges he's a regular reader. So get thee to Austin and file away.

As for your arrogant argument that non attorneys can't understand plea agreements, I know full well that "The criminal law explicitly authorizes a defendant to make such a a deal, and gives the State permission to destroy biological evidence." I think that's a bad law. Only someone who thinks no one was ever coerced through a plea bargain to admit to something they didn't do (or given a false confession during interrogation, e.g.) would say that constitutes justice when in Dallas where you're from more than a dozen CLOSED cases were proven wrong through DNA (and many others in the Sheetrock scandal and other FUBAR cases).

You live in a bubble, sir, where the world that lawyers have constructed and justified among themselves, you apparently believe, somehow corresponds to real-world morals and ethics that the rest of the public can recognize. Bottom line: it doesn't - not in this case. That a prosecutor from Dallas is arguing DNA should be destroyed in closed cases, given what we're seeing happen there, is an example of how "legal reasoning' has led your profession down a path of frankly often well-deserved disrepute.

Regards,Scott Henson

No word back yet from Mr. Rutherford.

Williamson County DA John Bradley added his own response on the DA website. He goes on at length pretending that his critics don't understand that it's legal to enter into an agreement to destroy DNA evidence in this fashion.

Who cares? No one ever argued otherwise. As I granted in the original post about which they're complaining: "The law allows plea agreements to waive future DNA testing," and I freely admit that it also allows the destruction of DNA evidence. That's not the point. Before 1863 the law permitted slavery, too. Some laws are bad laws, and this is one of them.

Bottom line: After all the recent DNA exonerations in Dallas, it no longer to seems wise to assume that DNA evidence in closed cases is irrelevant to future claims of actual innocence, especially given the incredible coercive power of high sentences to force reluctant plea agreements.

Bradley goes on to play the martyr, complaining that unruly, "unrestrained and uneducated" bloggers who dare monitor their User Forum are somehow infringing on prosecutors' First Amendment rights:

Final note: the value of this website is the ability of prosecutors to exchange thought and ideas. That value is diminished by the unrestrained and uneducated accusations of others who seek to make political points. But, that should not discourage lawyers from continuing to exchange information -- information that surely even outside posters would agree is available by virtue of the application of the First Amendment to all persons, even prosecutors.

This is a red herring. Who in the world is trying to stem prosecutors' free speech? If anything, all I've ever done on Grits is give their speech a wider audience, which hardly seems to impinge on their freedom.

Finally TDCAA executive director Rob Kepple added his own comments to the forum, himself attempting to wrap himself in the free speech banner while again dismissing any critics as uninformed. He wrote:

As an organization that supports public servants, our prosecutors, we have always taken the position that our hosted legal discussions don't need to be secret affairs. We still believe that, notwithstanding the disappointing reactions of others. Kinda embarassing for them, actually, that we are the ones carrying the First Amendment banner here....

My message to the posters on Grits: Rather than try to take every word we say and twist it to fit some pre-conceived notions you are straining to validate, why not be a little more open-minded? Why not try to follow and understand the legal issues discussed?

How is criticizing prosecutors' public statements restricting their First Amendment rights? I've yet to see one of these smart prosecutors make a single, credible argument to that effect except just to say so. Bottom line: It doesn't. As for following and understanding the legal issues, I understand completely: I just think this DA discussion is evidence that Texas' laws allow DAs too much leeway to secure potentially wrongful convictions through plea bargains. Destroying the evidence in these cases prohibits the kind of checks and balances provided by groups like the state's various Innocence Projects.

Kepple also spoke up to try to defend Mr. Bradley's comments, though apparently without reading the Williamson DA's actual words. He wrote:

I must have missed it, but I didn't see anything in the post about how a prosecutor wanted to destroy evidence because the person might be innocent...nor anyone talking about such an idea.

But that's silly. Bradley's comments said precisely that. I wrote to Kepple in response:

You definitely did miss it. John Bradley said destroying evidence was important because "innocence trumps everything." That means he wants to destroy evidence to avoid future innocence claims. I don't see any other way to interpret it.

Kepple replied thusly:

Scott: I interpret that exactly the opposite -- of course if there are issues of innocence, and they trump everything. Sometimes I get the feeling I could just post the name "John Bradley" on Grits and get people stirred up! I have this image of that guy in Young Frankenstein...every time he says "Frau Blucher" a horse nays!

At this point I'm pretty used to such dismissive, ridiculing rhetorical tactics by prosecutors against their critics - everything's too complicated for us poor laymen, is the common refrain, shortly before some humorous or insulting reference like the Young Frankenstein quip. I've been around that block many times, usually fruitlessly. But against my better instincts, I decided not to let it go there. Here's how I responded:

Rob, please look at JB's exact language and its context. He's saying that future arguments of innocence may trump waiver agreements because "innocence trumps everything", just like Craig Watkins is now allowing re-testing of DNA even where such agreements existed. Because of that, he says, it's better to destroy the evidence.

Honestly, how else can that be interpreted given what action (DNA destruction) he's advocating?

I'll certainly grant you I've got at least two or three regular commenters who I've seen consistently invoke Bradley as some demon incarnate. For my part, I think you'll find I've mostly restrained my criticisms to his actions and statements in the public arena or on issues with public policy implications beyond Williamson County - it's not like Grits is a John Bradley Watch. The blog Eye on Williamson County writes much more obsessively about him than I do. That said, I hope you'd agree JB holds himself out as an expert (on just about everything, humorously), testifies at the Lege portraying his opinions as those of "prosecutors," and holds himself out as a mentor and eminence gris among the prosecutorial set. When you do that and take controversial stands, especially when you do so with such disdain for those who disagree, frankly one invites criticism.

Finally, just to have said it, nobody in the world is trying to squelch prosecutors' First Amendment rights to discuss these things on your User Forum. I hope you continue to discuss these topics publicly. All I did was criticize what was said, just like I have countless news article, blogs, and others expressing opinions about Texas criminal justice public policy issues in public forums and settings.

Anyway, take another look at JB's comments and tell me if, in all honesty and good faith, he isn't proposing destruction of evidence BECAUSE innocence trumps everything. I just don't see your reading in the context of the the overall Q&A string and his followup comment.

None of this is abstract - DNA evidence is causing the release of wrongfully convicted inmates at an alarming pace, and we don't need to go around destroying evidence, especially in the most serious cases, until the science and the law around these situations is much more settled.

Here's the bottom line difference, I think, between my point of view and the prosecutors: They believe, "it's legal therefore it's right for me to do it." To me, just because it's legal doesn't make it right. In the case of destroying potentially exonerating evidence just to prevent future hassle or embarrassment, even if it's legal, I think it's decidedly wrong.

I'm just now listening this morning to the second half of yesterday's Texas House Corrections Committee meeting, and was interested to hear several criticisms lodged about HB 530 expanding drug courts in Texas to counties larger than 200,000. (See earlier Grits discussion of the bill.)

I support expanding drug courts, but some of the folks raising questions about HB 530, I thought, had particularly good points.

Magistrate Judge Joel Bennett from Travis County said the bill erred by failing to allow any violent offenders to participate in drug court programs. He said that's actually the group we should most want to include - those whose drug problems are causing significant anti-social behaviors. He said that Travis County's drug court originally did the same thing because it relied on federal money that had similar restrictions, but it was a bad idea and officials soon moved to change the policy once the program got going. He said since HB 530 relied on state money, there was no reason for the committee to make the same mistake.

Other significant critiques of the bill came from Dave Grasbaugh, a criminal defense attorney who supported drug courts but offered several caveats and cautions. For starters he objected to financing the bill through offender fees - he rightly said that offender fees have become so onerous many people already can't afford them, even with the best of intentions. The Legislature shouldn't continue to pile on fees, he said. I agree with that and believe that, given how much General Revenue (GR) money is saved in incarceration costs, drug courts deserve to be financed entirely out of GR.

Grasbaugh also wondered why the bill didn't allow drug courts for state jail felonies? Good question. He thought that might be a "sacred cow," but I can't understand why. The vast majority of felony drug possession cases are state jail felonies for less than a gram of a controlled substance. It makes little sense to me to exclude the vast majority of felony drug possession cases from participating in drug courts.

Finally, but perhaps most importantly, Grasbaugh suggested that there are significant, as-yet-unaddressed problems with drug courts diminishing the constitutional right of defendants. In many drug courts, he said, including in Travis County, defendants appear before judges without any defense counsel with them. Not only do they not have the right to remain silent, for example, they're expected to speak up and describe their addiction, etc. Grasbaugh said these constitutional rights issues have never been litigated and potentially pose a long-term challenge to the structure of drug courts that the Legislature, he predicted, must ultimately address.

The committee seemed generally favorable toward the drug court concept and I suspect they'll approve this bill, though with some modifications, hopefully, that address some of these concerns. We'll soon see. Stay tuned.

Monday, February 26, 2007

Is law enforcement spending its resources pursuing sharks or minnows in the drug war in Texas? You tell me:

Testifying this afternoon to the House Corrections Committee on behalf of drug court programs, 338th District Judge Brock Thomas of Harris County said that approximately 14,000 out of 41,000 felony indictments in Harris County in 2006 were for felony drug posssession, with about 12,000 of those cases for possession of less than a gram of a controlled substance.

Of those "less than a gram" offenders, said Judge Thomas, 60% are repeat offenders, and 17% have five or more previous drug related offenses.

In response to HB 409 by Eissler proposing to require parolees to achieve a G.E.D to complete supervision, former Corrections Committee Chairman Pat Haggerty (R-El Paso) replied that the funding wasn't there to support it, and the failure of the Texas Legislature to provide that funding was "criminal."

The number of inmates served by the Windham School District, Haggerty told the Corrections Committee this morning, hadn't significantly increased since there were 38,000 inmates in Texas before 1993. Now we have more than 155,000 inmates, said Haggerty, and Windham School District is "probably about the same size" as in 1993. Worse, he said, Windham's budget was mercilessly slashed four years ago and never restored.

"The cuts we made in '03 ... were criminal," said Haggerty. "We should be in prison for what we did in '03."

rejected a convicted defendant’s contention that his confession was coerced. The defendant claimed that he was promised leniency if he confessed, the Court observed, but “no such promise appears on the videotape of appellant’s statement.” Of course, very few detectives will make such a promise with the cameras rolling. That’s all the more reason to let them roll –during the entire interrogation, not just the confession itself.

I couldn't agree more about recording interrogations - that would do a lot to avoid coerced confessions, or he-said/she-said situations like this one where no one can no for sure whether a defendant was coerced. What's more, writes Professor Hirsch, the court found that

even if the detective made the alleged promise, it did not amount to improper coercion. The defendant testified that he was promised that, if he confessed, “I would not be held accountable for actions or something of that sort.” The court of appeals held that “this assertion is vague at best, and does not amount to a positive promise that would likely induce a false confession.”

In fact, as all false confession experts know, even subtle hints can be interpreted as implying leniency. To allow interrogators to make various assurances, as long as they stop short of “a positive promise,” is to invite false confessions.

A public policy report I authored was jointly released this morning by an unlikely liberal-moderate-conservative coalition between the ACLU of Texas, the Texas Criminal Justice Coalition and the Texas State Rifle Association.

The report follows up on subjects that first began as contemplations here on Grits: Are District and County Attorneys in Texas defying the Legislature to prosecute Texas drivers carrying otherwise legal weapons in their personal vehicles?

Longtime readers may recall that I filed open records requests last year with DAs and county attorneys across the state to find out. (I should pause to thank Lindsay Frenkel and Leah Pinney for their invaluable help sorting through and cataloguing the responses.)

We found that while many prosecutors were abiding by the new law, some were flaunting it. With the encouragement of the state DAs' association, some prosecutors advised local officers to continue to make arrests under the old case law, in defiance of the Legislature's clear intent.

Today the ACLU of Texas, the Texas Criminal Justice Coalition and the Texas State Rifle Association jointly issued this new report on DAs reluctance to enforce the law. Here's the text of the joint press release that came out along with it:

Law abiding handgun owners who carry their gun in their car may still face arrest or confiscation of the gun because many district attorneys have refused to implement a law passed by the legislature last session over their opposition.

“It appears that some District Attorneys, and the District Attorney’s Association, think that they are above the law,” said James Dark of the Texas State Rifle Association. “The law is now very clear that a person who is not a criminal can carry a handgun in the car, but District Attorneys have instructed police officers to ask a litany of invasive and unneeded questions, or even just make an arrest or confiscate the gun. If officers follow these instructions, they will clearly violate the rights of Texans carrying guns legally.”

An unusual coalition of gun rights, criminal justice and constitutional rights groups today released a study of the state’s implementation of HB 823, a new gun law clarifying a driver’s rights. The coalition filed hundreds of open records requests for any directives issued by District Attorneys to their local police departments.

“We launched this study because we had indications from the Texas District and County Attorneys Association itself that they were not ready to accept the passage of this new law,” said report author Scott Henson of the Texas Criminal Justice Coalition. “They want to position themselves as tough on crime, but they are willing to sacrifice the rights of law abiding citizens. We saw what they said publicly, and wanted to find out what they were actually telling police officers.”

The coalition found that some DAs are telling police departments to investigate gun owners using procedures developed before this law passed, when the status of “traveling” with a gun was unclear. One County Attorney advised police officers to arrest for "unlawful carrying" as before and let the prosecutor's office "sort out the legal niceties."

“Our study found that some officers have been instructed to ask motorists where they are coming from and where they are going and how long they’ve been on the road,” said Henson. “They have been told to look in the car for groceries or luggage. It simply doesn’t matter whether you have groceries or luggage in your car, or whether you drove a mile or 500 miles.”

“These roadside investigations of law abiding Texans are unnecessary, intrusive, and could be unconstitutional,” said Will Harrell of the ACLU of Texas. “Especially since it appears that a Texan’s freedom to drive with a gun in the car may still vary from county to county—the exact problem that this new law should have fixed.”

“We strive for the greatest clarity in the law so that law abiding citizens and police officers will both understand and abide by that law,” said Ana Yanez Correa, Executive Director, Criminal Justice Coalition. “We are happy to work with the District Attorneys to ensure that they fully understand motorist’s rights under the law and respect those rights.”

“The intent of the new law is clear,” said Dark, “but the coalition will support legislation to make it even more clear that law abiding Texans can carry a handgun in the car, if necessary. And we hope that the District Attorneys will learn that it’s not their job to enforce the laws they wish were passed by the legislature, but only the ones that are actually on the books.”

HB 1815 was filed last week to address the problem. For more information on HB 1815, contact the capitol office of Representative Carl Isett, 463-0676.

Restricting employers from restricting guns?Should private employers be allowed to fire or discipline employees, especially those with concealed carry permits, who leave legal guns in their vehicles in the parking lot? That's the subject of four of the five bills up in today's House Law Enforcement Committee. Take a look at them and tell me what you think. Me, I'm of two minds: I generally think legal gun owners should be allowed to carry them in their vehicles, but I also don't see that the Second Amendment endorses prohibitions on employers from restricting employees in ways that wouldn't be allowable for the government. Tough call - my gut goes with the gun owners, if the weapon is safely stowed, but I find myself uncomfortable waiving traditional employer rights. What do you think?

A Lawyer Walks Into A Bar (Exam)Former Austin Statesman reporter Jonathon Osbourne, who I knew a little bit when he covered the city hall beat, is one of the co-producers of a film that will debut at the SXSW film festival in Austin about lawyers preparing to take the California Bar Exam. Find out more here.

Travis County tries restorative justice for violent offendersThe Austin Statesman's Joshunda Sanders writes this morning about a restorative justice program at the Travis County Jail aimed at violent offenders that appears to be reducing recidivism. "Since January 2005, the Travis County sheriff's department has been enrolling hundreds of county jail inmates in Resolve to Abolish Violence Everywhere, or RAVE, a restorative justice program that includes General Educational Development classes, victim-offender meetings, counseling and job assistance when inmates return to the community. The program, which includes some faith-based counseling, is paid for with grant money and volunteer fundraising efforts."

Levin: Some employment barriers aimed at reducing competition, not improving safetyLast week the Texas Public Policy Foundation's Marc Levin had this terrific op ed in the Austin Statesman responding to this news article advocating ways to remove unnecessary barriers to employment for ex-offenders. Levin identified 168 separate job categories banned for ex-offenders whether or not their offense relates to the job. He wrote: "Many of the 168 prohibitions were never voted on by elected officials. Instead, they are bureaucratic regulations found in the Texas Administrative Code. In many instances, these rules were promulgated by boards controlled by members of the occupation who have a financial interest in keeping out competition."

Three rings plus animals at Willacy County circusThis news is a little old now, and while I was recuperating last week I tried not to waste too many brain cells monitoring the escalating ridiculousness in Willacy County, where the DA has ordered all pending criminal cases re-filed for fear a rival might have tampered with them. But it's impossible to ignore. It's like a car wreck on the Interstate - it's hard not to watch the mayhem as you drive by. Now we discover in this morning's Austin Statesman that the tentacles of this South Texas political mess may reach all the way into the statehouse, with the District Attorney (who I kid you not brought a barnyard full of animals to join his one-man demonstration in front of the courthouse) investigating state Sen. Eddie Lucio, Jr. on possible corruption charges involving prison lobbying contracts. Senator Lucio, for his part, won't discuss the contracts except to say they're of "modest" size and to deny wrongdoing. (South Texas Chisme says it doesn't hurt to ask the question. The Statesman mentioned that "Guerra's investigation into a bribery scheme involving federal prison contracts led to guilty pleas from three former Willacy and Webb county commissioners." More background here.)

How to decifer this mangle? Thankfully, Billy Clyde's Political Hot Tub Party has the best description I've seen of this FUBAR legal soap opera. He quoted Sheriff Larry Spence pleading incredulity, to which Billy Clyde responded:

Sure. Play the naivete card. Who, in this day and age, hasn't had a local District Attorney thrown out of office by an acting special prosecutor who has his own cases thrown out by a District Judge who is then removed from office and cannot accept cases because of his own ethical problems but can reinstate the sheriff if only the defense bar would permit it. All this while the sheriff and and a movie star threaten to make a Lifetime Movie and camp out on the courthouse lawn. I mean, come on. That shit happens everyday.

Sunday, February 25, 2007

For whatever reason, probably because my recent Rissie Owens Watch (she's the chair of the state board of pardons and parole, see here, here, and here) I've received quite a few private emails recently asking advice about a relative's particular parole case. I'm flattered you'd think I could help you, but the truth is I probably couldn't, and anyway am in no position personally to do so.

Just to have said it, let me reiterate for newer readers that I am not a lawyer, I cannot help you answer legal questions, and in particular I have little or no first-hand knowledge of the parole system to help with your friend or relative's case. Please don't ask me to, so I won't have to tell you "no."

With that said, proceed with caution. Get recommendations from others who've been through the process about whether or not to hire a lawyer before throwing your money away. Check references of your attorney's past clients. Last May in the Austin Statesman Mike Ward did a fine story about rampant fraud by some attorneys purporting to represent families of parole candidates who took a lot of money and did virtually nothing, so be really careful. It's now offline, but I blogged about it here, Stand Down has more here.

Here's a couple of common questions I get with simple answers: Find inmate information here, and check here to find out where a particular unit is located and which ones are managed by private contractors.

There aren't a lot of services for children of incarcerated parents, which in my opinion is a recipe for near-unmitigated disaster. However, if you're looking for a mentor for a child of an incarcerated parent, or to become one, try the Big Brother Big Sister Amachi Texas program. It's a start, but too often kids can't access more services until they've gotten into fairly significant trouble with the law.I know some people complain about Project RIO but it's the only public jobs program for ex-prisoners I know of. Here's TDCJ's ridiculously minimalist web page on re-entry services. (Actually, if you know of other resources to help prisoners find jobs, please leave the information in the comments.)Since I am not a lawyer (hereafter, IANAL), I also cannot credibly recommend one to you. Go here and here for links to Texas attorney referrals. Also, I no longer work for or with ACLU of Texas and cannot help you contact them. Here's the information on that group's case selection criteria and how to contact them.

That's about it, just to answer several questions that came up in recent similar emails all at a whack. Like I said, let me know about any additional resources by email or in the comments and I'll add them to the list.

It's amazing to me that with Texas prisons bursting at the seams and the probation system more or less broken everywhere in the state, nearly all positive attempts to fix the problem, even for low-level, non-violent offenders, receives the same, tired attacks from just a few vocal quarters. While I was distracted this week by little things like recovering from surgery, Eye on Williamson County was on the beat to monitor opponents of House Correction Chairman Jerry Madden's just-filed probation bill beating the drums against it, as reported in the Taylor Daily Press:

“Laws are in the books to protect the community,” he said. “I believe personally that any drug offense is illegal and should be punished with the maximum sentence. Those that abuse drugs should be punished.”

Georgens said treatment programs should not replace prison or jail sentences.

“I believe in giving everyone a second chance,” he said. “However, these programs should not be used in lieu of prosecution.

I'm not sure what the Taylor police chief is complaining about, since offenders are still being prosecuted, just their probation terms altered. Even Williamson County District Attorney John Bradley, no softie on crime himself, admitted that, "What it does in terms of changing sentences for drug cases is fairly narrow."

Apparently this time Chairman Madden has found compromise language that will pass most critics' and the governor's muster. HB 1678 is joint-authored by Speaker Pro Temp Sylvester Turner, a Houston Democrat, past Chair and current Corrections Committee member Pat Haggerty of El Paso, Jim McReynolds, a Democratic Corrections and Appropriations Committee member, and Austin Democrat Donna Howard - a truly bipartisan bunch. Of course, the bill passed by wide, bipartisan margins in both chambers in 2005, until the Governor vetoed it.

More on this as it develops, but for starters I thought I'd give readers a brief synopsis of what's in HB 1678, and just as important, what's not.

Reduce maximum probation lengths from ten to five years ONLY for third degree felony drug and property crimes.

Allow judge to credit time served in a treatment facility if the offender completes treatment.

Reduces onerous community service requirements for all levels of offenders.

Early release: Requires judge to notify state and defense attorneys and consider whether to reduce or terminate probation at one half probation length or two years, whichever is more.

A judge can continue probation for the full term for offenders who threaten public safety.

HB 1678 does not apply to alcohol-related offenses including DWI.

It also does not apply to registered sex offenders.

The best part: it will reduce caseloads for local probation officers so they can focus their attention on more serious offenders, and give offenders incentives to earn their way off probation through good behavior.

Saturday, February 24, 2007

Let's call this brief departure from Grits' usual topics a point of personal privilege. Quite a few folks have asked me to put up pictures of my new grandaughter - really the child of my goddaughter Mikel, who my wife and I raised after she was eleven. Now she's 22 with a four-month old infant, Tytionna. Here are a few greatest hits from the ones I have available for upload:

Tytionna looking a little worried soonafter returning from the hospital

When the Texas House Criminal Jurisprudence Committee passed HB 8 (their version of "Jessica's Law") without any amendments or changes, I thought they missed a big opportunity. Four of the nine committee members are from Dallas, where just weeks before, James Waller was released after spending 24 years in prison based on a false allegation of child molestation.

Why not use this legislation as a vehicle to make sure such a thing doesn't happen again?

Art. 38.07. TESTIMONY IN CORROBORATION OF VICTIM OF SEXUAL OFFENSE. (a) A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if it is established that the victim previously knew the defendant, and if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred.(b) The requirement that the victim inform another person of an alleged offense does not apply if at the time of the alleged offense the victim was a person:(1) 17 years of age or younger; (2) 65 years of age or older; or (3) 18 years of age or older who by reason of age or physicalor mental disease, defect, or injury was substantially unable to satisfy the person's need for food, shelter, medical care, or protection from harm.

Call it the James Waller Amendment. Or James Giles, if you like. And if after all that's happened with more than a dozen recent exonerations someone from Dallas won't carry it, I'd think that's pretty disappointing.

Members of the Sheriff’s Association of Texas discussed varying issues with their respective senators and representatives about bills they consider important, including issues of:

Blue Warrant inmates in Texas county jails.

Funding for MHMR, TDCJ and mental health services and the mental health patients impact on county jails.

Methamphetamine manufacture, dealing and abuse.

Texas Border Security.

The abolishment or elimination of county elected offices.

Annual pay supplement for deputy sheriffs and sheriffs and a minimum entry pay for peace officers.

Painter spoke to Sen. Kel Seliger specifically about the Blue Warrant inmates in Texas county jails. “It’s about being able to allow parolees kept for technical issues to bond out of the county jail. The county jail is being used as a sanction facility until they have their hearing, which could be from three to six months,” he said.

I'm with 'em on the mental health issue, and they have a new ally in Advocacy Inc., too. I hope they get the beds they need to treat mentally ill defendants who've been declared incompetent to stand trial.

Finally, I've always laughed when counties complain about blue warrants as an "unfunded mandate" to the counties. That's the most absurd thing I've ever heard. Let me respond, "Pot, meet kettle. I think you'll have a lot in common!"

For starters, the state must accept these blue warrant prisoners within 45 days after they are "paper ready," and the last I heard the average wait time was less than three weeks. But that ignores the bigger hypocrisy: The funding of Texas' criminal justice system - and I suppose in most states - is really a giant unfunded mandate in the other direction, from cities and counties to state government via the prison system.

Cops and sheriffs who work for municipalities and counties make the arresting decisions, county prosecutors decide what to charge, and locally elected judges (and in rare instances, juries) are ultimately responsible sentencing. All those are local government actors. But the cost of incarceration is borne by the state. So local prosecutors who are super aggressive on lower level charges like John Bradley in Williamson County or Chuck Rosenthal in Harris actually cost the state a disproportionate amount compared to other counties, as do hang-em-high judges seeking to prove their "tuffness" as credentials for higher office.

Make me philosopher king and I'd require each county to repay the state for at least a portion of the cost for everyone it elects to imprison. (The magnitude of that imagined debt dwarfs the petty issue of blue warrants by a country mile.) Right now local taxpayers are artificially insulated from the decisions of local criminal justice officials, so prosecutors and judges can be "tuff" in their campaigns and in the courtroom without ever being held accountable for the fiscal consequences.

That's a fantasy, and would require reworking the state constitution to accomplish. But just contemplating such a pay as you go arrangement shows what a small issue blue warrants are in the scheme of things, and how hollow the Sheriffs' cries of injustice sound on the matter.

There are things the Legislature could do to reduce county jail overcrowding that would help far more than anything they could possibly accomplish on blue warrants, if they had the gumption. More on that topic perhaps soon.

Friday, February 23, 2007

A Texas Youth Commission press release says Executive Director Dwight Harris resigned as direct fallout from the alleged sex abuse scandal at the Pyote facility in West Texas, a story broken in the Texas Observer last week. In addition to a lengthy adumbration of Harris' career with TYC, the press release declared:

On Thursday, the House Appropriations Committee delayed approval of TYC’s budget requests amid news reports of a 2005 Texas Ranger investigation at TYC’s facility in Pyote, Texas. Though Dwight Harris had no prior knowledge of any employee-on-youth sexual misconduct at the facility, news reports inaccurately insinuated he did.

“If I had known about allegations of staff sexual misconduct, I would have called in the Rangers myself,” said Harris. “But, that is irrelevant now. This happened on my watch and I own the ultimate responsibility for it. I don’t want the rest of this session to focus on that. The agency still faces challenges stemming from our expansion in the 1990s and early part of this century. That has to take center stage so that we can find solutions to our safety problems. I know I don’t just speak for myself when I say that we genuinely care about the well-being of our staff and youth.”

This is a sad day for TYC, but kudos to my buddy Nate Blakeslee and the Texas Observer for breaking a story that could lead to major reforms at this troubled agency before the legislative session is done. Sen. Juan Hinojosa's SB 103, discussed earlier here, is scheduled to be heard in the Senate Criminal Justice Committee on Tuesday.

UPDATE (2/24): See initial MSM coverage from AP, the Dallas News here and here, and The Brownsville Herald. Rep. Peña has a few choice words. As an aside: Talk about throwing a news story out with the garbage! TYC issued its press release after 5 o'clock on a Friday afternoon by putting the thing on its website! Still, this story is way too big to ignore, especially with Tuesday's hearing approaching, so I bet this PR maneuver won't help much. Expect more coverage in the Sunday papers and before and after Tuesday's hearing.

Big news at the Texas Youth Commission: Rumors are swirling that Executive Director Dwight Harris will tender his resignation on Monday. Nate Blakeslee breaks the story on the Texas Observer's blog:

One week after we broke the story of the sex abuse scandal at the West Texas State School in Pyote, Harris may have decided the fallout had become too much to handle. He is scheduled to appear before the Senate Criminal Justice committee on Tuesday to answer questions about his agency’s handling of the allegations of sex abuse, including what appeared to be an effort by the agency to cover up the scandal.

And there may be another unpleasant surprise in the offing: Yesterday the agency distributed a memo to elected officials warning that it had received a press inquiry into another incident of sex abuse, this one occurring in 2004-5 at the Ron Jackson State School in Brownwood, in Central Texas. According to the memo, a male staff member was found to have engaged in sexual relations with more than one inmate at the facility. He resigned when the agency began investigating, and no charges were ever filed, the memo said. As far as I can tell, this incident has never been covered in the media.

Harris’ possible resignation raises several questions, among them: 1) Who can the TYC board find to turn this troubled agency around, and 2) Who will field questions from Sen. Hinojosa and the Criminal Justice Committee on Tuesday?

Two subjects most people don't associate with the prison system - voting and the elderly - will be hot topics on Monday in the Texas House Corrections Committee. A pair of good bills I'm excited about by Rep. Harold Dutton are on Monday's agenda, in addition to Chairman Madden's HB 530 expanding use of drug courts that I blogged about yesterday. Here are the highlights:

Voter Reinfranchisement:HB 770 provides notice to offenders that they are eligible to vote when they are "off paper," meaning they no longer supervised by the Texas Department of Corrections or a local probation department. Right now former inmates are eligible to vote when they're off paper, but because rules are different in each state, many ex-offenders don't realize they're eligible to re-register. The relevant part of the bill states:

NOTICE TO FORMER INMATE.

(a) The Texas Department of Criminal Justice shall provide written notice to a person who is released from the custody or supervision of the department that the person may be eligible to vote if the person is no longer subject to the disability referred to in Section 11.002(4).

(b)The department shall provide to the person an official voter registration application form prescribed by the secretary of state together with the notice required by Subsection (a).

Exercising the right vote helps ex-offenders reintegrate into society by giving them a sense of civic pride, belonging, and even patriotism that comes from participating in the decisions made by government that affect them. It's perhaps no coincidence that the decline in voter participation in Texas in the last three decades has coincided with a massive prison buildup that far outstripped Texas' growth in population.

I like the idea of sending them a formal notice and a voter registration card. It's like society's way of telling someone: "Welcome back. We know you screwed up, but we forgive you, and as long as you act like an adult, we'll treat you like one." In fact, it wouldn't bother me if that was the exact message in the note from TDCJ. ;)

In Sunset Commission hearings last fall, legislators learned that TDCJ pays five times as much in inmate health costs for prisoners over 50 years old compared to those under 50. It doesn't make sense to have those inmates scattered across 100 units. Why not have them all in one place where intensive medical needs could be handled more efficiently and hopefully less expensively? And finally,

Via The Wretched of the Earth we discover yet another case where faulty eyewitness testimony helped convict an innocent defendant of a sex crime in Dallas, this time for an alleged gang rape. The Dallas News covered the story this morning ("DA joins fight to clear man," 2-23). By all appearances, this will be Dallas' 13th recent exoneration based on DNA testing.

The victim at the time picked the defendant out of a photo array, but the man had been included only as a result of mistaken identity. Police had mistaken him for the real named suspect identified by a co-defendant, who had the same first and last name. (As an aside: How many of these cases do we have to see before Texas requires improvements in police methods of eyewitness identification?) Even worse, when police discovered their mistake they kept mum. Reported the News:

Evidence that identified James Earl Giles as the true rapist was given to Dallas police before James Curtis Giles' 1983 trial but never disclosed to his trial attorney, a violation of laws requiring exculpatory evidence to be produced.

Without DNA evidence to re-test, the truth would never have come out. But it appears today's prosecutors have learned that lesson and figured out a way to avoid that happening. On the DA's user forum, Williamson County DA John Bradley advised a fellow prosecutor that they should seek an agreement to destroy DNA evidence as part of a plea bargain (to life without parole in a capital murder case), so nobody can come along later and prove the defendant didn't do it.

How's that for living up to a prosecutor's oath to "seek justice"?

The law allows plea agreements to waive future DNA testing. Bradley pointed out that, "Innocence, though, has proven to trump most anything." As a result, he said:

A better approach might be to get a written agreement that all the evidence can be destroyed after the conviction and sentence. Then, there is nothing to test or retest. Harris County regularly seeks such agreements.

And that's probably why Harris County hasn't seen the number of DNA exonerations as in Dallas - when cases like this involving police or prosecutor misconduct arise and DNA evidence is the only way to prove it, they've already destroyed the potentially exonerating evidence.

That's pretty smart if all prosecutors care about is racking up wins, but it's morally abhorrent for anyone who cares about truth or justice.

BLOGVERSATION: Michael Connelly at Corrections Sentencing protests that my characterization of such plea agreements as morally abhorrent "doesn't even come close to covering it. This is pure CYA and substituting the worst form of human evil for justice." Fine, then. Correction noted.

Thursday, February 22, 2007

Via email I just received this notice from the Texas Criminal Justice Coalition about HB 530, a bill authorizing the expansion of drug courts in Texas, which is up Monday in the House Corrections Committee. Here's what TCJC had to say:

Drug Courts Work: Drug courts are a proven effective diversion program for individuals who suffer from drug addiction. This program involves intensive interaction between offenders and judges, more comprehensive supervision, routine drug testing, immediate sanctions for violations, and meaningful incentives for good behavior.

Texas Needs More Programs that Work: Although the drug court program has been highly successful and immensely popular in the handful of places they are in operation in Texas, they are still unavailable in many counties. Given drug courts’ proven success at eliminating addiction and reducing criminal recidivism, Texas must establish and institutionalize the drug court model more widely.

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